Government not alone in being responsible for CBI not being independent

All three wings of the State (including Parliament and Supreme Court), and all political parties (including Congress and BJP) should share some blame for CBI not being independent

In its order dated May 8, 2013 (here), in the coal scam related PILs, a 3-Judge Bench of the Supreme Court consisting of Justice R.M. Lodha, Justice Madan B. Lokur and Justice Kurian Joseph, stressed the need to make CBI independent of extraneous influences. The Court referred to its decision in the case of Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889 (here), wherein it had emphasised the need for insulation of CBI from any extraneous influences to enable it to discharge its duties in the manner required for proper implementation of the rule of law. Certain directions had been issued in the said Vineet Narain case, inter alia, directing that the Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency. In that case, the Supreme Court had also noted that though the Minister who has been given responsibility for the functioning of the CBI has general power to review its working and give broad policy directions and he has also power to call for information regarding progress of the cases being handled by the agency, but none of these powers would extend to permit the concerned Minister to interfere with the course of investigation and prosecution in any individual case.

In spite of these directions given in the said Vineet Narain case, when the Supreme Court noticed that the status report of the CBI in the coal scam had been shared with a Minister and certain officers of the Central Government, it sarcastically called the CBI a “caged parrot” and expressed its desire to free the CBI from extraneous influences to make it functionally independent in the matters of investigation. In its above-mentioned order dated May 8, 2013, the Supreme Court wanted to know whether the Central Government intended to put in place appropriate law for the independence of the CBI and its functional autonomy and insulate it from extraneous influence(s) of any kind so that CBI is viewed as a non-partisan investigating agency. The Court further noted that this query was put to the Attorney General as it thought that if the statutory framework was in place, there would not be any necessity for it (i.e., the Supreme Court) to undertake exercise in this regard.

No doubt, the Supreme Court order is well-intended. However, it is not that it is the Government alone which is fully responsible if the CBI is not functionally independent today even after the aforesaid Vineet Narain case. The Parliament has also been equally responsible by inserting Section 6A in the Delhi Special Police Establishment Act, 1946, (DSPE Act) after the said Vineet Narain case. In fact, this section was added in the above Act during the year 2003 when the NDA Government headed by BJP was in rule at Centre. It is pertinent to mention that the aforesaid DSPE Act governs the CBI and this newly added Section 6A took away functional autonomy of CBI greatly after the Supreme Court had restored it in Vineet Narain case in the year 1997. As per this section, the CBI was required to obtain prior approval from the Central Government for initiating any enquiry or investigation against senior Government functionaries (more details are in the later part of the article)

Moreover, with great respect, I may point out that the Supreme Court should also share a part of the blame for continuation of Section 6A in the aforesaid DSPE Act. How? It has not decided the case challenging the constitutional validity of Section 6A for last about 10 years! This case is pending for decision before the Supreme Court, now for about 10 years and is yet to be heard and decided.

Let me now throw some light on the details, since there is complete silence everywhere (including the media) about this important aspect that greatly impacts the functional autonomy of CBI and for which all three wings of the State, namely, the Executive, the Legislature and the Judiciary, should share the blame equally. And, moreover, for this, all political parties in India should share the blame, since the said 6A was inserted in the DSPE Act by the NDA Government, and it is being continued and used by the present UPA Government, and since all political parties of some importance in India have been part (or, outside supporter) of either the NDA Government or the UPA Government, or both, during these years at one or the other time (perhaps, the only exception that comes to my mind is AIADMK headed Ms. J. Jayalalitha). Thus, no political party or institution can claim high moral ground on this issue.

Now, the details. A “Single Directive” was issued by the Government of India which required prior sanction of the designated authority to initiate the investigation against officers of the Government and the Public Sector Undertakings (PSUs), nationalised banks above a certain level. The Single Directive was a consolidated set of instructions issued to the CBI by the various Ministers/Departments in this behalf. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contained certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. In the aforesaid Vineet Narain case, the Supreme Court quashed this Single Directive. Before this Vineet Narain case, this Directive No. 4.7(3) in its final form was as under:

“4.7(3)(i). In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent or above in the Central Government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary or above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up an enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE.

(ii) All cases referred to the administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference. In respect of the officers of the rank of Secretary or Principal Secretary to Government, such references should be made by Director, CBI to the Cabinet Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members. The Committee should dispose of all such references preferably within two months from the date of receipt of such a reference by the Cabinet Secretary.

(iii) When there is any difference of opinion between the Director, CBI and the Secretary of the Administrative Ministry/Department in respect of an officer up to the rank of Additional Secretary or equivalent, the matter shall be referred by CBI to Secretary (Personnel) for placement before the Committee referred to in Clause (ii) above. Such a matter should be considered and disposed of by the Committee preferably within two months from the date of receipt of such a reference by Secretary (Personnel).

(iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step of the kind mentioned in (i) above the case should be submitted to the Prime Minister for orders.”

Thus, the said Single Directive required that the CBI could not take up any enquiry or investigate or register a case or conduct a search or effect an arrest in respect of the aforesaid decision-making level officers without the previous consent or permission of the aforesaid authorities. As mentioned above, the question of validity of this Single Directive came up before the Supreme Court in aforesaid Vineet Narain case (here), wherein the Supreme Court struck down this Single Directive as being invalid and illegal.

In this connection, the Supreme Court had held that there can be no doubt that the overall administration of the Delhi Special Police Establishment i.e., CBI vests in the Central Government, which also includes, by virtue of Section 3 of the DSPE Act, the power to specify the offences or class of offences which are to be investigated by it. The general superintendence over the functioning of the Department and specification of the offences which are to be investigated by the agency is not the same as and would not include within it the control of the initiation and the actual process of investigation, i.e., direction. Once the CBI is empowered to investigate an offence generally by its specification under Section 3 of the said DSPE Act, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of “superintendence” in Section 4(1) of the DSPE Act. The word “superintendence” in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions. It cannot be accepted that the Government of India can issue any directive to the CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the Act. The jurisdiction of the CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 of the DSPE Act and not by any separate order not having that character. Once the jurisdiction is conferred on the CBI to investigate an offence by virtue of notification under Section 3 of the said Act, the powers of investigation are governed by the statutory provisions and they cannot be estopped or curtailed by any executive instruction issued under Section 4(1) thereof. This result follows from the fact that conferment of jurisdiction is under Section 3 of the Act and exercise of powers of investigation is by virtue of the statutory provisions governing investigation of offences. It is settled that statutory jurisdiction cannot be subject to executive control.

It was further held in the said Vineet Narain case (here) that there is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a pre-requisite for the Court to take cognizance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the DSPE Act. The word “superintendence” in Section 4(1) of the DSPE Act in the context must be construed in a manner consistent with the other provisions of the Act and the general statutory powers of investigation which govern investigation even by the CBI. The necessity of previous sanction for prosecution is provided in Section 6 of the Prevention of Corruption Act, 1947 ( or under Section 19 of the new Prevention of Corruption Act, 1988) without which no Court can take cognizance of an offence punishable under Section 5 of that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision. The above is the only manner in which Section 4(1) of the DSPE Act can be harmonised with Section 3 and the other statutory provisions.

The Supreme further held (here) that the Single Directive No. 4.7(3) stipulating the modalities of initiating investigation against certain Civil Servants who are decision making officers, issued by the Government, has to be examined in this background. The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as “decision making officers”. Where the accusation of corruption is based on direct evidence and it does not require any inference to be drawn dependent on the decision making process, there is no rational basis to classify them differently. In other words, if the accusation be of bribery which is supported by direct evidence of acceptance of illegal gratification by them, including trap cases, it is obvious that no other factor is relevant and the level or status of the offender is irrelevant. Cases of bribery, including trap cases, are outside the scope of the Single Directive. Similar is the case of possession of disproportionate assets. There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision maker. Those are cases in which the inference drawn is that the decision must have been made for a corrupt motive because the decision could not have been reached otherwise by an officer at the level in the hierarchy. This is, therefore, an area where the opinion of persons with requisite expertise in decision making of that kind is relevant and, may be even decisive in reaching the conclusion whether the allegation requires any investigation to be made. In view of the fact that the CBI or the Police force does not have the expertise within its fold for the formation of the requisite opinion in such cases, the need for the inclusion of such a mechanism comprising of experts in the field as a part of the infrastructure of the CBI is obvious, to decide whether the accusation made discloses grounds for a reasonable suspicion of the commission of an offence and it requires investigation. In the absence of any such mechanism within the infrastructure of the CBI, comprising of experts in the field who can evaluate the material for the decision to be made, introduction therein of a body of experts having expertise of the kind of business which requires the decision to be made, can be appreciated. But then, the final opinion is to be of the CBI with the aid of that advice and not that of anyone else. The Supreme Court observed that the Single Directive cannot, therefore, be upheld as valid on the ground of it being permissible in exercise of the power of superintendence of the Central Government under Section 4(1) of the DSPE Act. Accordingly, the Single Directive was struck down by the Supreme Court in the said Vineet Narain case (here).

However, within a few months after the aforesaid decision of the Supreme Court in the case of Vineet Narain, by the Central Vigilance Commission Ordinance, 1998, dated 25th August, 1998, Section 6-A was sought to be inserted in the DSPE Act, 1946, providing for the previous approval of the Central Vigilance Commission before investigation of the officers of the level of Joint Secretary and above. But, on the intervention of the Supreme Court, this provision was deleted by issuance of another Ordinance promulgated on 27th October, 1998. Thus, from the date of the decision in the case of Vineet Narain (i.e., 18th December, 1997) and till 12th September, 2003, there was no requirement of seeking such previous approval, except for a period of about two months from 25th August to 27th October, 1998.

However, as mentioned above, w.e.f. 12th September, 2003, a new Section 6-A was inserted in the Delhi Special Police Establishment Act, 1946. It, inter alia, provides for obtaining the previous approval of the Central Government for conduct of any inquiry or investigation for any offence alleged to have been committed under the Prevention of Corruption Act, 1988, where allegations relate to officers of the level of Joint Secretary and above and in some other cases. This newly-introduced Section 6A is reproduced below:

“6-A. Approval of Central Government to conduct inquiry or investigation.—(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to—

(a) the employees of the Central Government of the level of Joint Secretary and above; and

(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.

(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for case involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).”

Thus, it is clear that this new Section 6-A in the DSPE Act reintroduced the requirement to obtain prior approval of the Central Government for cases against such senior level officers as was the requirement earlier under the Single Directive.

The constitutional validity of the aforesaid newly inserted Section 6-A was challenged before the Supreme Court in a case filed by Dr. Subramanian Swamy. It is noticed from the Supreme Court website that in an order of as early as November 3, 2003 (here), there is a mention of a prayer being made to strike down the aforesaid newly introduced Section 6A of the DSPE Act (that was introduced w.e.f. 12th September, 2003) that severely affects the functional autonomy of CBI. This matter was listed again sometimes thereafter, and then by a decision dated 4th February, 2005, reported vide Subramanian Swamy v. Director, CBI, (2005) 2 SCC 317 : 2005 Cri LJ 1413 (here), a 3-Judge Bench of the Supreme Court referred this matter to be decided by a larger Bench. Now, it is May, 2013. The decision of the larger Bench is still awaited till date. This matter was last listed on January 11, 2011, before a Constitution Bench of 5-Judges (here). A long period of about 10 years has passed since Section 6A was introduced in DSPE Act in the year 2003 and its constitutional validity was challenged in that year. The Supreme Court is yet to hear and decide this matter as to whether this provision is constitutionally valid or not. Unfortunately, this is in spite of the fact that corruption is one of the biggest problems that our country faces and during last 3-4 years, a lot has been said and written about corruption and CBI.

Therefore, the position, as of the date of writing of these words, is that Section 6-A of the DSPE Act, 1946, stands in the law books and is valid, which means that prior approval of the Central Government would be necessary for instituting a case under the Prevention of Corruption Act against officers of the level of Joint Secretary to the Government of India and above and in certain other cases [excepting in a situation covered in sub-section (2) of Section 6-A, which basically refers to a public servant being caught red-handed while taking bribe during a trap]. Therefore, the law itself provides for Government interference in CBI investigations in cases against the senior level functionaries, since the very initiation of the investigation or inquiry is barred without prior approval of the Central Government. It goes without saying that it is the corruption cases against the senior level Government functionaries which matter the most. The CBI is toothless here. Or else, we can say that the CBI will get its teeth in such corruption cases only if the Central Government decides to provide these teeth to it. A “caged parrot” and there being no power to bite!

Now that the Supreme Court itself has again taken up the issue of functional autonomy and independence of the CBI in the matters of investigation, it is earnestly hoped that it will also expeditiously hear the aforesaid matters in which the constitutional validity of Section 6A of the DSPE Act has been challenged. Moreover, since, on the basis of the directions given by the Supreme Court, the Government has also constituted a Group of Ministers to consider enacting legal provisions to grant functional autonomy to CBI, it is hoped that the Government will introduce a Bill that delete the said provision and will make other appropriate changes in the law to make CBI fully independent in conducting investigations. Of course, one also hopes that the Parliament will pass such Bill with due urgency (no stalling of the Parliament please, dear Opposition leaders).

[Note: A substantial part of this article is based on the extracts taken from my book Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6). I am presently revising this book for its 3rd Edition.]

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

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